The Court of Chancery Rules require that any petition or complaint be verified under Rule 3(aa), requiring that they “be under oath or affirmation by the party filing such pleading that the matter contained therein insofar as it concerns the party’s act and deed is true, and so far as relates to the act and deed of any other person, is believed by the party to be true.”
The question becomes, how can a party file a complaint in the Court of Chancery if the declarant is not located within the United States and unable to access a notary public to verify the pleading?
The Delaware Uniform Unsworn Foreign Declarations Act, codified as Sections 5351 through 5356 of Title 10 of the Delaware Code, provides a solution. Under this Act, and with certain exceptions, an unsworn declaration meeting the requirements of the chapter may be used in lieu of a traditional verification required under Rule 3(aa). Per Section 5356, the unsworn verification must be substantially in the following form:
I declare under penalty of perjury under the law of Delaware that the foregoing is true and correct, and that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.
The Delaware Court of Chancery has confirmed that an unsworn declaration under this Act may be used to verify complaints and pleadings filed under Chancery Rule 3(aa). See Bessenyei v. Vermillion, Inc., C.A. No. 7572-VCN (Del. Ch. Nov. 16, 2012).